Summary: Mr D complained about the Council’s intentions to move his brother to a different care setting. He said this would cause distress and would not meet his brother’s care needs. We have discontinued our investigation into this complaint. This is because the Council has not made a decision and there has been no change to Mr D’s brother’s care. There is therefore no injustice to consider.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained about the Council’s intention to move is brother (Mr X) to a residential care home and make changes to his care.
2. As a result, Mr D is concerned his brother’s needs would not be properly met. He also said his brother would experience distress from a change of setting.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. As part of my investigation, I have:
• considered Mr D’s complaint to the Council and its response;
• discussed the complaint with Mr D;
• considered the information he provided and the Council provided.

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What I found

Law and guidance

7. The purpose of the Mental Capacity Act 2005 is to protect people who cannot make decisions for themselves or lack the mental capacity to do so. The Act outlines five principles:
• A person must be assumed to have capacity unless it is established that he or she lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps have been taken to support them to make a decision for themselves.
• A person must not be treated as unable to make a decision merely because he or she makes an unwise decision.
• An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
• Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their rights and freedoms.
8. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

9. Mr D’s brother (Mr X) has severe and complex learning difficulties. He also has mental health problems and is unable to make his own decisions about his care.
10. In 2020 the Council completed a Care Act Assessment for Mr X. Its Social Worker found he would benefit from a move from his supported accommodation to a residential accommodation. She said this was because, in her view, this would better support his care needs and be less restrictive.
11. Mr D said he discussed the proposals with the Social Worker. He believed she had arranged a best interest meeting to arrange the move from his current setting.
12. Mr D disagreed with the Social Worker’s view and complained to the Council. He said:
• Mr X’s care needs may be restrictive, but his current setting was the best place to meet his needs;
• A review of Mr X’s Continuing Health Care plan was postponed due to a COVID-19 lockdown. He said this should take place before a best interest meeting; and
• A change in setting would have a detrimental impact on Mr X emotionally and would not be in his best interests.
13. In response the Council acknowledged Mr D’s concerns about changes to Mr X’s care, but it did not uphold Mr D’s complaint. It explained:
• its Social Worker had requested a review of Mr X’s Continuing Health Care plan, but this had been declined by the Continuing Health Care team. However, she was still trying to seek support and input from the team.
• although, its Social Worker had reached her view through the Care Act Assessment, a best interest meeting had not taken place. This was because there were no options for Mr X’s care to consider at this stage.
• as Mr X does not have capacity to make decisions about his care, a multidisciplinary team would have to work together to determine what is in his best interest, as set out in the Mental Capacity Act. The Court of Protection can be asked to make a judgement on any disputes in this process.
14. Mr D remains concerned about changes to Mr X’s care and the impact this would have. So, he brought the matter to the attention of the Ombudsman.

Analysis

15. I understand Mr D is concerned about changes to his brother’s care setting and care. However, the Council has confirmed it has not held a best interest meeting, nor made any decisions to change Mr X’s care or care setting. It has told Mr D about steps it is taking to reassess how Mr X’s care needs are best met. Mr D is happy about the care his brother currently receives. There has therefore been no injustice to Mr X, nor Mr D, at this time.
16. If a best interest meeting is held and Mr D disagrees with its outcome. He can ask the Council to refer the matter to the Court of Protection for its judgement.

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Final decision

17. The investigation into this complaint will be discontinued. This is because the changes complained about has not happened or been decided. There is therefore no injustice to consider.

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Investigator's decision on behalf of the Ombudsman